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Now in paperback, this book addresses the rapidly evolving field of Alternative Dispute Resolution in a manner ahead of its time. Taking a cross-disciplinary approach, it explains the cognitive, social, organizational and developmental psychology theories that influence ADR and its approaches. From mediation to arbitration to hybrid processes, it helps students understand the strengths and weaknesses of the many varieties of ADR, and why various approaches succeed or fail. This edition includes streamlined coverage of conflict diagnosis, increased treatment of non-adversarial, facilitative forms of dispute resolution, and the latest legal and ethical trends impacting the field.
In 1975, when I began the study of law at the University of Southern California, there were virtually no law school courses that taught the law and practice of Alternative Dispute Resolution (ADR). But soon thereafter, a revolution took place in the legal systems of the United States and other westernized nations: potential litigants and their attorneys began to let go of the view that a lawsuit is the inevitable conclusion to an unsettled dispute.
In the 1970s, the ADR revolution began, almost timidly, as a counterculture oddity, with a few community mediation centers springing up in big cities, and a few divorce professionals experimenting with alternatives to the adversary process for families seeking "friendly divorces." I myself joined this experiment in 1983, obtaining graduate training and becoming a divorce mediator in those early years when divorce mediators were about as common as a six-toed cat. Proving that it was not a passing fancy, ADR gathered steam throughout the 1980s, and exploded into mainstream legal practice in the 1990s. By the turn of the twenty-first century, every federal trial court and nearly every state court had some sort of ADR program. Virtually all law schools had courses in ADR, and many offered elective concentrations and clinical programs in the field. Thanks to the work of visionaries, geniuses, and pioneers of ADR—Robert Baruch-Bush, Former Chief Justice Warren Burger, Roger Fisher, Stephen Goldberg, Kimberly Kovach, Kenneth Kressel, Lela Love, Carrie Menkel-Meadow, Len Riskin, Frank E. A. Sander, William Ury, and James Westbrook, plus my own mentors, Elizabeth Koopman and Joan Hunt and others too numerous to mention—it seemsclear that ADR is here to stay.
And, yet, it is still unsettled just what sort of legacy these trail-blazers will leave behind. ADR gives us a dazzling array of choices when a dispute arises or a transaction runs into trouble. Our decades of reliance on adversarial methods of settling interpersonal conflicts has left fallout: our view of conflict is blinded by our narrow past experience. The application of ADR processes to legal disputes that would otherwise have been litigated (or settled "on the courthouse steps") may turn out to have profound implications, both on the personal-client level and on a broader societal level; beyond the savings of cost and time, the choice, selection, and presentation of ADR processes to disputants has the potential to transform culture, for good or ill.
But despite the potentially monumental nature of the transformation on which our legal system is embarking in the ADR revolution, there is a tendency to use ADR processes without a careful understanding of their uses, applicabilities, and impacts on individual disputants and on the legal system and society as a whole. The lack of appreciation for the subtle distinctions among ADR processes is part of a bigger problem: we do not have firmly in place methods of understanding interpersonal conflict so that we can select, or design, optimal methods of handling them, nor would most of us recognize a good strategy if we saw it. Add to this deficit the Western cultural reliance on "rugged individualism" and the American belief that competition is integral to social organization, and a serious blind spot is created, one that often prevents us from selecting dispute-resolution processes well and wisely. Indeed, these lapses are often invisible players in the decisions our government makes when it designs and funds dispute resolution programs, as well as in decisions about how our law schools teach new lawyers to use ADR. Thus, early in the ADR revolution, many experts in the field wonder whether the true potential of ADR as a tool that can be tailored to individual conflicts will ever be realized.
This textbook is an effort to fill this void, by presenting a method of understanding interpersonal conflict and ADR that transcends the existing blinders. The method, referred to in the text as conflict diagnosis, enables the user to clarify the reasons for the conflict, the deep-seated goals and interests of the disputing parties, and the impediments to effective resolution, with a level of complexity that real-life conflict presents and demands. Knowing the conflict at this level of detail and objectivity enables practitioners of conflict diagnosis—whether disputing parties, attorneys, paralegals, ADR screeners, or ADR neutrals—to tailor the very best process to meet the needs of those with whom they are concerned. It also allows the user-particularly if he or she is embroiled in a dispute—to develop better strategies for addressing the conflict. These intentional and rational strategies move beyond the knee-jerk reaction or the "fight or flight" response. Most of the ideas that make up conflict diagnosis are not new; what is new is the logical organization and level of detail in which they are presented, as well as the transformation of these ideas from cerebral theory into hard, practical skill.
This book started out simply as an ADR textbook for students of law and legal studies. It features a particularly thorough and comprehensive survey of ADR processes: mediation, arbitration, nonbinding evaluation, and hybrid processes, and stands alone in that role. But the book is unique in its use of the principles of conflict diagnosis to better achieve the goal of surveying and understanding the ADR field. I began the task of writing this book because, as an educator teaching ADR to legal studies students and legal professionals, I found that none of the available texts adequately explained how to match a specific conflict to an optimum ADR process and provider. Conflict diagnosis is the missing link, giving the reader an understanding of why particular dispute-resolution processes work very well in some cases, but not so well in others, and revealing side effects, both positive and negative, that accompany the application of particular dispute resolution processes to conflicts. Conflict diagnosis provides a theoretical and practical basis for understanding the major ADR forms, their advantages and disadvantages, and their indications and contraindications. Many works attempt to describe ADR processes without the theoretical basis provided by conflict diagnosis, or with only sparse and shallow use of some of its concepts. But in my opinion, trying to select a dispute resolution process without understanding its conflict diagnosis implications is like trying to select a treatment for a sick patient without knowing the illness—it's risky at best.
So ADR and conflict diagnosis are intricately intertwined. The field of ADR offers people who are involved in conflicts, either as disputants or as agents, advocates, neutrals, and others, many alternatives to the litigation process. Conflict diagnosis, on the other hand, offers people the tools for charting a path from impasse to solution and suggests dispute resolution strategies and options, including the use of ADR, that are most appropriate in addressing the conflict.
This book, mirroring the reality of the relationship between conflict diagnosis and ADR, deals with both topics together. It begins with an in-depth explanation of conflict diagnosis. Using the theories from which conflict diagnosis has been developed as an explanatory base, the book gives a thorough treatment of the relationship between ADR processes, variants, and specific features, and the pros, cons, and specific applicability of each process. The conflict diagnosis paradigm sets out the needed information in a straightforward and systematic way for practitioners and disputing persons to apply. The student of interpersonal conflict and ADR will be able to understand the intricacies of ADR processes only by understanding the nature of the problems and challenges that each process responds to.
But conflict diagnosis is much more than a pedagogical device for teaching ADR. Indeed, although I developed conflict diagnosis from available conflictresolution theory and research as a way to convey information about ADR to my legal studies students, I simultaneously discovered an invaluable tool for my own work as a professional mediator. As I began applying the techniques of conflict diagnosis to my own cases and clients, I discovered a powerful tool for understanding and dealing with difficult conflicts. As an attorney and mediator, and as an individual with conflicts in my personal, family, and professional life, I have personally found that applying conflict diagnosis is a critical step in the process of responding to conflict efficaciously. Conflict diagnosis is a kind of recipe for gaining understanding of a conflict, achieving useful emotional distance and objectivity, and selecting appropriate approaches to its resolution. It's a deliberate, structured, sometimes plodding process. But when it's used, seemingly magical things can happen. A rigorous application of conflict diagnosis techniques can lead to sudden enlightenment about the conflict—a sort of "aha" effect. When this happens, it is almost like stumbling on a set of magic keys—the keys to transforming a conflict from impasse to opportunity. Conflict diagnosis can often light the way from a seemingly impossible situation to a solution. It is my hope that, in making a commitment to using the techniques of conflict diagnosis, you, the reader, will have many "aha" experiences of your own, and that you and the people around you will be the glad and enriched beneficiaries.
In short, although this book is intended for students, conflict diagnosis can benefit anyone, because everyone interacts with others and therefore encounters conflicts. Whether you are a lawyer, a teacher, a parent, an employee, a middle manager, a legal assistant, a chief financial officer, a neighbor, a judge, or a college student, conflicts are inevitable, and into each life conflict will inevitably enter. This book presents and provides information about the range of ADR processes available to address legal disputes, but beyond this the book presents a coherent and comprehensive method of understanding and responding to conflicts of all sorts. Whether the majority of conflicts in your life more closely resemble fender-benders, contract disputes, health insurance claims denials, office politics problems, multinational corporate merger transactions, or dueling preschoolers (or, if you are very, very busy, all of the above), this book aims to provide you with the means to find the "magic keys" for resolving differences.
I confess to being an idealist. Armed with the ideas and skills that comprise conflict diagnosis, and with a truly comprehensive grasp of the promise of alternative dispute resolution, each of us can find the magic keys to unlocking tough conflicts. An army of legal professionals, carrying this knowledge, can take law practice to the next level, serving clients with an effectiveness and an efficiency we could not have dreamed of a half-century ago. But the usefulness of conflict diagnosis does not end with legal disputing. As individuals, friends, family members, parents, and consumers we can use the ideas of conflict diagnosis to handle everyday conflict more effectively. And as members of the collective enterprises in which we inevitably are a part, we can better make the tough decisions that we must make to create a better and more peaceful world.
A brief note about ADR terminology. Alternative Dispute Resolution is a relatively new, rapidly evolving, and interdisciplinary field, and, perhaps because of its rapid growth, it is marked by confusion over terminology. An effort has been made to identify and rigorously define ADR-related terms, both in the glossary that follows the chapters, and in boxes embedded in the text. To make for easier understanding, definitions provided in the chapters are accompanied by graphical icons that identify the field from which each term is taken:
Guidance and support for classroom and CLE courses include:
1. Basic Definitions.
2. Dispute Resolution Processes: An Introduction.
3. Of Artisans, Invisible Veils and Philosophical Maps: Our Preconceptions About Conflict and How They Short-Change Us.
4. Conflict Diagnosis.
5. Recurrent Themes in Conflict Diagnosis.
II. THE STEPS OF CONFLICT DIAGNOSIS.
6. Step 1: Describe the Conflict.
7. Step 2: Identify the Sources of the Conflict.
8. Step 3: Perform an Interests Analysis.
9. Step 4: Assess the Character of the Conflict as Constructive or Destructive.
10. Step 5: Assess the Levels of Trust and Development Strategies to Increase or Preserve It.
11. Step 6: Assess the Impediments to Resolving the Conflict.
12. Step 7: Assess the Negotiation Styles and Practices of the Participants.
13. Step 8: Assess Power and Alternatives to a Negotiated Agreement.
14. Step 9: Consider Diversity Issues at Play in the Conflict.
PART III. ALTERNATIVE DISPUTE RESOLUTION PROCESSES.
15. Mediations: An Introduction.
16. Understanding the Advantages and Disadvantages of Mediation.
17. The Process of Mediation.
18. The Law and Ethics of Mediation.
20. Nonbinding Evaluation.
21. Mixed, Hybrid, and Multimodal Dispute Resolution Processes.
IV. PUTTING IT ALL TOGETHER.
22. Power Tools and Magic Keys: Using Conflict Diagnosis to Manage Legal Disputes and Select ADR Processes.
Appendix A: Is Conflict Diagnosis Necessary?
Appendix B: Using Conflict Diagnosis.
Appendix C: In Search of Magic Keys to Resolving Conflict.